Firms pile into fast-moving corporate crime sphere but is there enough work to keep all hands busy?

 

Georgina Stanley and Anna Cole-Bailey assess a highly competitive sector in flux

Tesco, Rolls-Royce, Unaoil, Greenergy – as companies face increasing scrutiny of their governance and anti-corruption procedures, the number of law firms striving to corner the lucrative white-collar/corporate crime market shows no sign of abating.

Since 2017 there have been more than 20 significant London hires of white-collar/regulatory lawyers by leading UK and US firms, with no fewer than 16 in 2018 alone.

This hiring frenzy is reshaping both the market and The Legal 500 rankings. Since 2015, six firms have fallen out of the tier-one rankings for white-collar work for individuals caught up in criminal investigations. In turn, five have replaced them in band one, including US players Dechert, Wilmer Cutler Pickering Hale and Dorr (WilmerHale) and Brown Rudnick, with many seeing Dechert as the clear pace-setter.

Given that historically individuals tended to be advised primarily by criminal boutiques, these last additions are significant, as the lines between legal teams advising corporates and individuals increasingly blur.

Historically, representation of individuals was limited to a small group of boutiques like BCL, Kingsley Napley and Peters & Peters, while if a corporate found itself in trouble it would turn to its regular plc adviser. But that was before tougher enforcement and progressive moves to widen corporate liability under failure-to-prevent provisions, most notably in the 2010 Bribery Act, recast the sector.

BCL veteran Ian Burton reflects: ‘So-called white-collar crime is a growing area as there is so much more regulation now, with the likes of the CMA, FCA, SFO, Charity Commission, FRC, HMRC, etc. There is a culture whenever there is a financial disaster to say somebody must be criminally liable. This attitude massively increases the need for the services of specialist lawyers.’

White-collar grandee David Corker of Corker Binning notes: ‘There’s been dramatic growth in firms opening white-collar crime departments in London in the last decade. This is due to US law firms bringing their own white-collar practices with them from the US and the Bribery Act spurring on more white-collar crime practices – it has made companies want more legal advice.’

‘There’ll always be a need for lawyers acting for individuals.’
Ali Sallaway, Freshfields Bruckhaus Deringer

This year’s top-tier corporate crime rankings – which assess firms for their work for corporates drawn into criminal investigations and proceedings – include five firms that were not present in 2015. These include US firms, such as Kirkland & Ellis, as well as City firms like Linklaters and boutique Peters & Peters. And this is before the impact of the latest round of hiring is felt in full, as many are still trying to make their mark.

But what does this mean for those who have been in the game for a long time and rivals trying to find their way in?

At Freshfields Bruckhaus Deringer, which has advised on high-profile cases like Tesco, global investigations co-head Ali Sallaway (pictured) argues that the addition of new entrants is not necessarily bad news for the boutiques. She says: ‘For every corporate at the centre of a criminal investigation there are always other issues – ie, civil or regulatory issues – and there are always individuals involved who need individual legal advice. It’s absolutely critical that they have that separate advice, so there’ll always be a need for lawyers acting for individuals.’

But with the type of firms ramping up in the practice ranging from the likes of Ropes & Gray and Greenberg Traurig from across the Atlantic, through to City thoroughbreds like Macfarlanes and Linklaters, others argue the jury is out on whether there will be enough work to occupy everyone.

Some international firms have been focusing on trying to build internal expertise by hiring leading criminal lawyers, such as Allen & Overy’s recruitment of Eve Giles from Kingsley Napley, or Stewarts’ hire of Richard Kovalevsky QC from the Bar. Others, like Slaughter and May, which shipped in former SFO director Sir David Green QC as a consultant, are instead concentrating on hiring in talent from enforcement agencies to enhance their corporate client offering.

What unites those trying to expand to service both corporates and individuals is the fact that conflict problems are likely to rear their head at some stage. As Stewarts’ Kovalevsky points out: ‘There will always come a point when you have to choose between the company or individual and, when it gets serious, you will have to exit one. For the bigger firms, conflicts mean it will always be the individual they exit and they will always keep the corporate.’

Some partners, however, are managing to successfully ride two horses, such as Macfarlanes’ Neill Blundell, WilmerHale’s Stephen Pollard and Arnold & Porter’s Kathleen Harris, but it is true that the larger the firm and the larger the crisis, the more likely it is that it will be the individual dropped by the biggest firms.

Giles, however, stresses that the problems are not insurmountable and that experience advising individuals is now critical to rounded plc-facing teams. ‘There’s much more demand from the boards of companies and those that are regulated to have white-collar expertise – when things go wrong they want to reach out to their full-service firm. Conflicts still happened at the boutiques too – it goes back to the importance of having the boutiques – white-collar is a pretty close-knit community and you regularly refer work to people in your network.’

The bigger shadow hanging over the sector is likely to affect those advising corporates and individuals alike – a potential slowdown in enforcement activity. Since Lisa Osofsky took over from Green as head of the SFO only a handful of new cases have opened, including the investigation into Greenergy. Moreover, a number of cases, including an investigation into individuals involved in the Rolls-Royce scandal, have been dropped.

Add in the fact that the Trump administration has given less support to robust enforcement and many partners suggest the London market is patchy right now.

Anne-Marie Ottaway at Greenberg Traurig observes: ‘It’s all dictated by how much the agencies are doing. While there are a lot of people claiming to do white-collar work, it’s hard to know if there’s enough enforcement to justify it.’

Jonathan Cotton at Slaughter and May agrees, noting: ‘The market has exploded over the last decade and many have sought to buy in capacity, whether from law enforcement agencies or some of the longer-standing specialist firms. However, there’s probably some over-capacity and maybe there will be some retrenchment.’

The likely outcome in a practice that is still developing as fast as white-collar/corporate crime is there will be more divergence, and some high-profile losers alongside the winners. As elite operators pull ahead and secure marquee work, consolidation lower down the rankings looks likely. Nevertheless, the level of fees for marquee corporate crime and global investigations mandates mean the contenders will surely keep coming.

The new UK edition of The Legal 500 is out now.

georgina.stanley@legalease.co.uk

anna.cole-bailey@legalease.co.uk